New York State Senate again votes to bar funding to student organizations involved in ‘hate speech,’ ‘intolerance,’ or promotion of boycotts of Israel or U.S. allies

Wednesday, March 8, 2017 15:34

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Last June, the New York State Senatepassed an alarming billthat, had it also passed the state assembly, would have barred funding to student organizations engaged in “hate speech” or the promotion of boycotts of Israel or certain nations allied with the United States. That bill —S8017—failedbecause it was passed at the tail end of the legislative session and did not clear the New York State Assembly. Today, however, the New York State Senate revived the bill — asS2493— andpassed it unchanged, renewing the possibility that the state of New York could be on a collision course with the First Amendment.

S2493 would bar state universities, city universities, and community colleges from funding any student organization that “promotes, encourages, or permits” boycotts against certain nations or permits “intolerance” or “hate speech.” The bill’s primary sponsor explained in apress releasethat the bill was in response to anti-Semitic incidents allegedly perpetrated by the student organization Students for Justice in Palestine, although independent investigators commissioned by the City University of New York systemconcluded in Septemberthat their “investigation does not support” calls to ban SJP from CUNY campuses.

As FIREexplainedlast time, this bill is patently unconstitutional. S2493, like its predecessor, fails First Amendment analysis in multiple ways:

The bill’s language is broad, encompassing both actual boycotts and merely encouraging others to boycott, and would compel New York universities to distribute their funding on a viewpoint-discriminatory basis. That is, New York universities could fund groups that discourage boycotts of Israel (or other “allied nations”), but not those that encourage it. As the Supreme Court has made plainly clear,viewpoint-discriminatory funding of student organizationsis not permitted at public universities and colleges. In fact,the Supreme Court has heldthat, “When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.”Worse, the definition of “boycott” is so vague that it would prohibit student organizations from calling on “any person” — including the President of the United States and other elected officials — to abstain from “political relations” with an allied nation. That means that if your student organization wants to call on Congress to reconsider its relationship with the state of Turkey, it will be ineligible for funding, because Turkey is a member of NATO.

Aswe explained before, the proposed legislation is also unwieldy, forcing administrators and student governments to literally drag out maps and scrutinize treaties to determine whichcountries a student organization can and cannot criticize:

The bill is also viewpoint-discriminatory in that it prohibits boycotts of some states, but not others. It’s nearly impossible to figure out which states can be criticized, and which cannot:

What does it mean to be a member of NATO? Does it include members of thePartnership for Peace, like Austria, Finland, and Sweden? Perhaps not, as Ireland is also a member of the Partnership for Peace, but the Senate Bill explicitly names Ireland as an ally—which it wouldn’t have to do if membership in NATO’s Partnership for Peace were sufficient to count as an “ally.”

What if your organization thinks it was wrong for the United States to end its trade embargo against Cuba? Can you call on [President Trump] to reverse course? Cuba is asignatoryto the Rio Treaty, but it wassuspendedduring the Cold War.

Does the restriction on boycotting apply to any state which signed theSoutheast Asia Treaty of 1954, but later withdrew, likeAustralia and Pakistan? What about Vietnam, Cambodia, and Laos, which were protected by the Southeast Asia Treaty Organization, but prohibited by another treaty from signing the 1954 treaty?

As we have said repeatedly in the past, the remedy for speech one dislikes is more speech. We hope lawmakers in the New York State Assembly agree and realize that pursuing this legislation is incompatible with America’s bedrock principle of free speech.